Wednesday, December 14, 2011

How to Win Your Criminal Case; and What Makes the Best Criminal Defense Attorney.

It is often asked of me by prospective clients and young attorneys what is the secret of your success and how do you obtain such a large number of cases being dismissed, extremely favorable plea agreements, and jury acquittals for the cases that ultimately go to trial.

Over twenty-five years ago while attending a criminal law seminar while still in law school I was privileged in listening to an experienced criminal defense attorney whose words I have never forgotten.His key to success was simple and direct, that criminal cases are not won in the court room but in the office.To this day my philosophy with ever criminal case is that pretrial preparation is the key to success.You win criminal cases by doing extensive criminal trial preparation with every case.That includes the relentless request from the prosecutor for every piece of discovery which may be relevant to, or lead to relevant discovery in the case.If the prosecutor refuses to turn over the evidence use your subpoena power, OPRA request, or file a motion to compel.Normally, when important information or evidence is not turned over to the defense attorney during the initial exchange of discovery, it is because the prosecutor simply and honestly does not have the discovery in his or her file.However, the search should not end there.The question that a good criminal defense attorney must ask, who is concerned in winning his case, is why did the police fail to turn-over to the prosecutor evidence which is clearly relevant to the guilt of innocence of the criminal defendant?The answer is simple but not obvious to the inexperienced criminal defense attorney.When a piece of evidence is not turned over, and it appears that the police have overlooked it, the majority of the times it was not innocently overlooked, but rather, not obtained, not preserved, or not turned over, because that particular evidence DID NOT FIT INTO THEIR THEORY OF THE CASE.Stated differently, the evidence that they conveniently over-looked, helps your client’s defense and is fodder for reasonable doubt, or in some cases proves that the defendant is completely innocent.

Therefore, it is essential that an extensive and complete investigation of the file and evidence be reviewed by the criminal defense attorney, and to begin with the goal and mind-set, not only what the evidence that was furnished by the prosecution says, but what it doesn’t say, and left out, and why was it left out?

The best criminal defense attorney should with ever case than begin to decide what pretrial motions need to be filed.Remember, the best criminal defense attorney does not stop with the typical motions, such as motion to suppress, but rather, he must be as creative as possible, to think outside the box.Only than will the attorney be able to obtain a wealth of information which will ultimately lead to a complete dismissal of all charges, very favorable plea agreement, or acquittal at trial.Remember, with all cases the first opportunity to win your case is before you even step foot in the court room with your client.

In the final analysis, fancy words or dramatics, begging with the prosecutor, judge or jury will benefit your client little if you are not prepared to do the hard and tedious work pretrial.